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Massachusetts considering postmortem publicity rights

Will Massachusetts become the 14th state to provide for postmortem publicity rights?

The state Senate passed a law that would prohibit the commercial use of the “name, image, and likeness of a personality” for 70 years after his or her death without written permission from either the personality or “persons who collectively own more than 50 percent of the aspect of the personality’s right of publicity that was commercially used.”

Senate bill 2022 defines “personality” as “an individual whose identity has commercial value.” The personality at issue must have been domiciled in Massachusetts at the time of death to receive protection under the proposed law.

Under the proposal, damages for infringement of the right of publicity are set at the greater of $1,000 or the actual damages suffered, including profit earned by the infringer, as well as attorneys’ fees and costs.

The bill is backed by Bay State resident Bill Cosby. If passed by the state House and signed into law by the Governor, Massachusetts would become the 14th state to extend publicity rights after death, joining Arizona, California, Florida, Indiana, Kentucky, Nevada, Ohio, Oklahoma, Pennsylvania, Tennessee, Texas, Virginia, and Washington.

Why it matters: In addition to adding to the trend of state recognition of postmortem publicity rights, the Massachusetts bill would also provide one of the longer terms of protection. Currently, Tennessee offers perpetual publicity rights to decedents domiciled within its borders, while Indiana gives personalities 100 years of protection, and Massachusetts would join California with a 70-year period.